Secretary of Labor v. Consol Pennsylvania Coal Company, LLC

Plain-English summary

Consol operated the Harvey Mine, where an emergency lifeline ran directly above nine hydraulic hoses in a longwall escapeway. The hoses extended as much as 43 inches into the route and rose as high as 38 inches above the floor. The Commission held that a lifeline is not located for effective escape when it leads miners toward trip hazards that may be difficult to see during a smoke-filled emergency. It also held that the later method used to abate the citation did not determine whether the original condition violated the standard. The Commission affirmed the violation, its significant and substantial designation, and the judge's decision.

Decision snapshot

• Cited standard: 30 C.F.R. § 75.380(d)(7)(iv)
• Outcome: The lifeline citation and its significant and substantial designation were affirmed.
• Key point: An escapeway lifeline must guide miners along a route they can use effectively during an emergency, without directing them into obstructions.

Full text (FMSHRC public release)

FEDERAL MINE SAFETY AND HEALTH REVIEW COMMISSION

1331 PENNSYLVANIA AVENUE, NW, SUITE 520N

WASHINGTON, DC 20004-1710

SECRETARY OF
LABOR,                              :

MINE SAFETY AND
HEALTH                      :

ADMINISTRATION
(MSHA)                         :       

:

v.
                                               :          Docket No. PENN
2019-0094

:                               

:                               

:

CONSOL
PENNSYLVANIA                           :

COAL COMPANY, LLC        
                         :

BEFORE: Jordan,
Chair; Althen, Rajkovich, and Baker, Commissioners

DECISION

BY THE COMMISSION:

This
proceeding arises under the Federal Mine Safety and Health Act of 1977, 30
U.S.C. § 801 et seq. (2018) (“Mine Act” or “Act”). At issue is whether the
Administrative Law Judge erred in affirming a citation issued by the Department of
Labor’s Mine Safety and Health Administration (“MSHA”) to Consol Pennsylvania
Coal Company, LLC (“Consol”).

The citation alleges that Consol failed to
locate its emergency lifeline “in such a manner for miners to use effectively
to escape,” in violation of 30 C.F.R. § 75.380(d)(7)(iv). [1] Sec. Ex. 2 (Citation
No. 9076458). The citation further states that the lifeline was “located directly
above [several hydraulic] hoses.” Id . The citation was designated as
being significant and substantial (“S&S”). [2]

In affirming the
citation, the Judge found that the evidence in the record established the
violation under the language of section 75.380(d)(7)(iv) and Commission caselaw.
43 FMSHRC 120 (Mar. 2021) (ALJ). The Judge also affirmed the S&S
designation associated with the citation, reiterating several of the same facts
supporting the existence of the violation. Id . at 133-35. Consol filed a
petition seeking discretionary review of the Judge’s decision, which the Commission
granted. For reasons set forth below, we affirm the Judge’s decision.

I.

Factual
and Procedural Background

A.     Factual Background

Consol operates
the Harvey Mine, a bituminous coal mine located in Pennsylvania. On February
21, 2019, MSHA Inspector Joseph Vargo conducted his inspection at the mine. He
traveled to the 5A longwall alternate escapeway, via the number two track
entry. Id . at 122;

Tr. 27, 32. The
entry is the fastest route out of the section and is traversed daily by three
shifts of miners traveling to and from the 5A longwall. Tr. 68-69. It contains
a directional lifeline for miners to use in the event of an emergency. At the
time of the citation, Vargo counted ten miners working in the area. Tr. 66-67.

Vargo
took issue with the fact that the lifeline was hung directly over nine
hydraulic hoses, creating what he deemed to be a slipping and tripping hazard. Tr.
33, 39. The hydraulic hoses extended out of a pump car (through a manifold),
which had been parked in the 47 ½ crosscut for eight days. [3] Tr. 33, 39,
69-71.

According to
Vargo, the hoses extended into the crosscut, blocking the route of the
lifeline. Tr. 33, 40. The longest hose extended 43 inches laterally into the
path of the escapeway. Sec. Ex. 2 (Vargo’s notes), at 3, 5-6; Tr. 43. He
measured the heights of the hoses as ranging from 14 to 38 inches (more than
three feet) above the mine floor. Consol’s witnesses did not dispute these
measurements. Tr. 199.

The witnesses all
testified that the hydraulic hoses would eventually droop down towards the mine
floor and that Consol would typically place either rock dust bags or a metal
ramp, if not both, on top of the lowered hoses to level out the walking
surface. Tr. 46-47, 94-95, 100, 102. In this scenario, however, only rock dust
bags were used where the hoses met the mine floor.

The lifeline was
hung from the roof down the middle of the walkway. Tr. 167-68. The lifeline would
be attached to roof bolts at various distances, using plastic art clips and zip
ties, which would break away in an emergency. The flexible extensions were
attached to the roof with an “S” hook. Tr. 168. When the lifeline was stored,
it was held up about one foot from the roof by quick-release tension clips or
zip ties. Tr. 54, 272.

The lifeline could
be pulled diagonally from clips on the roof, with slack that permitted it to
stretch out to 54 inches, due to its nylon-based flexibility. Sec. Ex. 2, at 5;
Tr. 55, 57-58. The extensions were similar to a “bungee cord” except that when
the lifeline was not in use, it would coil up like an old phone cord. Tr. 168. When
deployed, the flexibility of the system was intended to allow miners to
navigate past and around the hydraulic hoses and the pump car.

Tr. 54-55, 272.

Vargo acknowledged
that, in addition to the miners being able to extend 54 inches due to the
lifeline’s flexibility, the length of the miners’ arms (approximately 18-24
inches) would afford them additional flexibility while still maintaining
contact with the lifeline. Tr. 97. Troy Hellen, the mine’s Respirable Dust Coordinator,
testified that, at the area where the citation was issued, miners “would never
have to [let] go of the lifeline.” Vargo testified, however, that even with the
lifeline’s extensions, there was still a slip, trip, and fall hazard underfoot
from the hoses and the existence of uneven rock dust bags. Tr. 57-58, 100.

Vargo issued the
citation in question, which alleged that the lifeline’s location failed to
allow miners to effectively escape in the event of an emergency. [4] Tr. 34, 48. He
noted that it was reasonably likely that a miner would trip and fall over the
hoses, potentially creating a “domino effect” in which other miners behind
would also fall, possibly dropping their self-rescuers or hitting other objects
in the process. Tr. 59-60; 63. He believed that miners would be walking quickly and
may not be able to see where they are going, particularly in the event of
smoke. Tr. 64. Vargo
expressed
specific concern about miners having difficulty maneuvering in a smoke-filled
environment because their headlamps, flashlights, and reflectors would not help
with such limited visibility. Tr. 64. Both Hellen and Consol Safety Inspector
Chase Shaffer acknowledged that such limited visibility would create difficulty
seeing obstacles in the mine. Tr. 187; 222; 250-51. Vargo concluded
that a slip, trip, and fall hazard therefore existed, which was reasonably
likely to cause injuries, including bruises, dislocations, sprains,
lacerations, and contusions, with at least one person affected. Tr. 62-63.

Hellen
acknowledged that he had received internal injury reports at the mine stating
that in two recent prior instances, a slip, trip, and fall hazard had occurred,
which had led to a twisted ankle in one scenario and the need for three
stitches in the other. Tr. 203-204. The mine’s history of assessed violations
showed 230 violations in the 15-month period prior to the issuance of the
citation. Sec. Ex. 4. The Judge characterized seven of those violations as involving
a “similar standard.” [5] 43 FMSHRC at 136.
No other conditions were cited along the primary and secondary escapeways when
the citation was issued. The mine was on a five-day spot inspection for
methane. Tr. 25-27; 30 U.S.C. § 813(i).

Vargo testified
that the condition had existed for eight days prior to the citation. Tr. 70. He
found that three shifts of miners would have traveled through the number two
track entry up and back each day while the condition existed. Tr. 69. MSHA
proposed a penalty of $768.

B.     The Judge’s
Decision

In affirming the
violation, the Judge concluded that, despite the possible 54-inch extension in the
lifeline, it was not “located in such a manner for miners to use effectively to
escape.” The Judge credited Vargo’s testimony that under emergency
circumstances and with limited visibility, the protruding hoses posed a
tripping hazard that could cause injury.

43 FMSHRC at 131-32.

The Judge rejected
Consol’s argument that MSHA cited the wrong standard. Id . at 132-33. The
Judge’s holding was limited to “conditions that specifically relate[d] to the
lifeline and whether miners could have used it as an effective means of
escape.” Id . at 132.

The Judge also
affirmed the S&S designation associated with the citation. Id . at 133-35.
In doing so, he reiterated several of the same facts supporting the existence
of the violation. He found that during an evacuation emergency with limited
visibility, a slip, trip, and fall hazard was
“particularly” likely . Id . at 134. The Judge relied on testimony
from both Vargo and the Consol witnesses explaining the difficulty miners have
in maneuvering under limited visibility conditions. Id . He found that
the fall injuries from a tripping hazard were “reasonably likely,” citing to
several examples of “strains, sprains, and fractures.” Id . at 134-35. The
Judge also noted that “fallen miners or equipment dislodged during the fall
could become obstacles to others attempting to escape, increasing the
likelihood of an injury occurring.” Id . at 135. Finally, the Judge held
that the trip-and-fall injuries would be reasonably likely to be serious,
because of the fall itself, as well as it potentially delaying evacuation of
other miners or creating a need for additional rescue efforts. Id .

II.

Disposition

A.     We Affirm the
Judge’s Finding of a Violation.  

The mandatory
safety standard at 30 C.F.R. § 75.380(d)(7)(iv) requires lifelines to be “[l]ocated
in such a manner for miners to use effectively to escape.” The Judge found that
the lifeline was located directly above hydraulic hoses which protruded into
the escapeway and, therefore, the location of the lifeline would prevent miners
from effectively escaping.

43 FMSHRC at
131-32.  

We affirm the
Judge’s finding of a violation; the plain language of the standard prohibits
locating the lifeline above hazards which impede effective escape. Where the
language of a regulatory provision is clear, the terms of that provision must
be enforced as they are written unless the regulator clearly intended the words
to have a different meaning or unless such a meaning would lead to absurd
results. [6]
See Dynamic Energy, Inc ., 32 FMSHRC 1168, 1171 (Sept. 2010) (citations
omitted). The Commission has noted that “[s]ection 75.380 contains extensive
requirements as to the location and physical attributes of escapeways so that
miners, including those disabled in a mine accident and needing assistance, can
quickly and safely get from the start of the escapeway to the surface.” [7] The American
Coal Co ., 29 FMSHRC 941, 948 (Dec. 2007).

The undisputed
record evidence establishes that the lifeline was located directly above
hydraulic hoses which extended out into the escapeway. 43 FMSHRC at 122-23,
citing to

Tr. 27, 33-43,
57-58 64, Sec. Ex. 2; CP Ex. 8A-8D (the photographs). The hoses extended out into
the escapeway up to 43 inches laterally and up to 38 inches above the mine
floor. The Judge found that the hoses were trip and fall hazards, which may
cause injuries to miners or delay the evacuation of miners in an emergency
situation. 43 FMSHRC at 122, 131-33, 135 (crediting the testimony of Inspector
Vargo). In an emergency situation the mine may be filled with smoke, limiting
visibility. Accordingly, the Judge concluded the location of the lifeline over
trip and fall hazards prevented miners from effectively escaping the mine. We
affirm the Judge’s finding of a violation because it is supported by
substantial evidence. [8]

Consol’s arguments
that the Judge erred in affirming a violation of the mandatory safety standard
at section 75.380(d)(7)(iv) are unpersuasive. Consol asserts that the safety
standard only requires the lifeline to be in an accessible location, e.g.,
accessible height, accessible position, etc. [9]
Consol contends that the standard’s requirements do not address hazards or
obstructions. PDR at 14-18. [10]

We reject Consol’s
interpretation as it fails to account for the standard’s plain language
directive to select an effective location. A lifeline located above
hazards and obstructions impedes escape. 43 FMSHRC at 132 (“even if miners
never lost contact with the lifeline, its position would have required escaping
miners to identify the protruding hoses as an obstacle and maneuver around them
in order to escape quickly and safely.”); see also Cumberland Coal Res .,
33 FMSHRC 2357, 2361 (Oct. 2011), aff’d 717 F.3d 1020 (D.C. Cir 2013)
(the “suspension of the lifelines by numerous J-hooks above cables and above
track equipment did not comply with [the safety standard].”). Obstructions –
whether necessary equipment or otherwise – must not impede effective use of the
lifeline pursuant to section 75.380(d)(7)(iv).

B.    
The Judge Properly Declined to Rely on any
Abatement Considerations in Finding the Violation.

To abate the citation, the lifeline
was re-routed from the “walkway” side of the “mule train” to the “tight side”
of the “mule train.” Consol argues that its original lifeline placement was
appropriate as compared to what Consol states is the less-safe abatement method
of hanging the lifeline on the “tight side” of the mule train. [11]

Section 104(a) of the Act provides
that inspectors issue citations for mandatory health and safety standards, and
then separately notes that “the citation shall fix a reasonable time for the
abatement of the violation.” 30 U.S.C. § 814(a). Whether or not abatement occurs
has no bearing on the underlying violation, but rather on whether the operator
is subsequently issued a failure to abate order under section 104(b). See Western
Industrial, Inc ., 25 FMSHRC 449, 453 (Aug. 2003) (holding the abatement
method is irrelevant in determining whether violation occurred); Bluestone Coal
Corp ., 19 FMSHRC 1025, 1030 (Jun. 1997) (“We agree with the Secretary that
the abatement requirements are irrelevant to the issue of whether the operating
speed of Payne's truck violated the standard.”). Simply put, whether and how a
violation is abated is irrelevant to whether a violation occurred in the first
place.

C.     The Judge Properly
Found the Violation to be S&S.

The “significant
and substantial” terminology is taken from section 104(d) of the Mine Act, 30
U.S.C. § 814(d), and refers to more serious violations. A violation is S&S
if, based on the particular facts surrounding the violation, there exists a
reasonable likelihood that the hazard contributed to will result in an injury
or illness of a reasonably serious nature. See Cement Div., Nat'l Gypsum Co .,
3 FMSHRC 822, 825 (Apr. 1981). In Mathies Coal Co. , 6 FMSHRC 1,
3-4 (Jan. 1984), the Commission further explained:

In order to
establish that a violation of a mandatory safety standard is significant and
substantial under National Gypsum , the Secretary of Labor must prove:
(1) the underlying violation of a mandatory safety standard; (2) a discrete
safety hazard -- that is, a measure of danger to safety -- contributed to by
the violation; (3) a reasonable likelihood that the hazard contributed to will
result in an injury; and (4) a reasonable likelihood that the injury in
question will be of a reasonably serious nature.

Id . at 3-4 (footnote omitted); accord
Buck Creek Coal, Inc. v. MSHA , 52 F.3d 133, 135 (7th Cir. 1995); Austin
Power, Inc. v. Sec’y of Labor , 861 F.2d 99, 103 (5th Cir. 1988) (approving Mathies
criteria).

The Commission has
emphasized that it is the contribution of a violation to the cause and effect
of a hazard that must be significant and substantial. U.S. Steel Mining Co .,
6 FMSHRC 1834, 1836 (Aug. 1984 ). The application of step two of the  Mathies  test
requires a determination of “whether [the] hazard was reasonably likely to
occur given the particular facts surrounding this violation.”  Newtown
Energy, Inc.,  38 FMSHRC 2033, 2041 (Aug. 2016) . Furthermore,
the Commission has emphasized that in evacuation standards, the third and fourth
steps of Mathies should be evaluated in the context of an emergency. Cumberland ,
33 FMSHRC at 2370, aff’d 717 F.3d 1020 (D.C. Cir. 2013). With respect to
the third step, an evaluation of the reasonable likelihood of injury should be
made assuming continued normal mining operations. See U .S. Steel Mining
Co .,
7 FMSHRC 1125, 1130 (Aug. 1985).

Here, the lifeline
was hung from the roof down the middle of the walkway, attached to roof bolts
at various distances, allowing it to break away in an emergency. Nine hydraulic
hoses extended out of a pump car through a manifold at the subject location. The
lifeline was hung directly over those hoses with no ladders, stairways, ramps,
or similar facilities present. While this condition existed, the testimony was
that three shifts of miners would have traveled through the area up and back
each day for a total of eight days. There was testimony that under emergency
conditions, miners
would be walking quickly and may not be able to see where they are going,
particularly in the event of smoke. The Inspector testified to
miners having difficulty maneuvering in a smoke-filled environment since their
headlamps, flashlights, and reflectors would not help with such limited
visibility. Consol witnesses acknowledged that such limited visibility would
create difficulty seeing obstacles in the mine.

As
discussed, the first step of Mathies was met since substantial evidence
plainly supports a violation—the location of the lifeline led miners directly
to an unaddressed obstruction .

Regarding the
second step of Mathies , the obstruction created “a discrete safety
hazard—that is, a measure of danger to safety—contributed to by the violation.”
Mathies , 6 FMSHRC at 3-4. Assuming an emergency evacuation, there was a likelihood
that miners following the lifeline into the path of the hoses would be tripped
up and impeded in efforts to evacuate the area, given the existence of the
violation and continued normal mining operations. The Judge found that even if
it were possible for miners to pull the lifeline around the hoses, miners would
need to “identify the protruding hoses as an obstacle and maneuver around them.”
43
FMSHRC at 132. Substantial evidence supports the ALJ’s conclusions regarding
the cited violation’s contribution to a discrete safety hazard.

Having
determined that the second step of Mathies was met, we now turn to the
third step. In the third and fourth steps, the violation is no longer the
explicit concern of the analysis; the question instead is whether the
previously identified hazard is reasonably likely to result in a reasonably
serious injury. See Cumberland Coal Res., LP , 33 FMSHRC 2357, 2365, 2370
(Oct. 2011), aff'd , 717 F.3d 1020 (D.C. Cir. 2013) ( citing Musser
Eng'g, Inc. & PBS Coals, Inc. , 32 FMSHRC 1257, 1280-81 (Oct. 2010). Substantial
evidence supports the ALJ’s finding of a reasonable likelihood that the hazard identified
in the second step would have resulted in an injury of a reasonably serious
nature, under the third and fourth step of Mathies . The Judge cited to
other cases where injuries resulted from tripping and falling. 43 FMSHRC at 134-35 . [12] The Judge also
found that any delay in escaping a mine during an emergency is likely to result
in serious injury or death.

Consol argues that
not every emergency evacuation citation should be S&S. We certainly agree. Cumberland ,
33 FMSHRC at 2369 (“Because the particular facts in a case may not establish
that a violation of an evacuation standard contributes to a hazard which is
reasonably likely to result in injury, not every violation of an evacuation
standard will be S&S.”) citing Rushton Mining Co ., 11 FMSHRC 1432,
1436 (Aug. 1989) (reasoning that the Secretary failed to establish that an
escapeway violation contributed to the existence of a “discrete safety hazard”
in an emergency situation requiring evacuation in view of the specific facts of
the violation). In contending that the violation was not S&S,
however, Consol does not argue that the Judge misapplied the law, but simply reiterates
its argument that no violation occurred. For instance, Consol repeats its view
that miners would “never lose contact with the lifeline,” that miners could use
the lifeline to effectively escape and that rock dust bags mitigated the hazard
the hoses posed. PDR at 30-32. Nevertheless, the path of the lifeline
led directly to the hoses, not the rock dust bags. Miners would still be led
directly to an obstruction, and not to the means to navigate that obstruction.

Consol
claims that “the vast majority of falls cause no injuries,” arguing that gloves
would protect miners. Whether or not that may be true as a statistical matter, this
case turns upon the circumstances of miners attempting to escape during an
emergency. See, e.g. , Knox Creek Coal Corp ., 36 FMSHRC 1128, 1133
(May 2014), aff’d , 811 F.3d 148 (4th Cir. 2016) (holding that the
Secretary was not required to produce quantitative evidence of the frequency of
hazardous malfunctions for S&S). No rationale is provided as to how gloves
would protect miners from serious injuries to the hands (or the body, as a
whole) when encountering obstructions during an emergency.

Finally,
Consol claims that the Judge misstated the facts in asserting that “the
location of the pump car constantly changes,” and that there is “simply no
evidence of this in the record.” CP Reply. Br. at 13. [13] Consol
asserts that although the pump car retreats as the longwall retreats, the
“basic setup does not change – the pump car is parked at a crosscut so
the hydraulic lines can go through the crosscut.” Id . It claims
that the “mule train and pump car are always in this position relative to the
section.” Id .  Based on this assertion, Consol claims that the
trained miners would take appropriate precautions to avoid the protruding
hoses, in the event of an emergency.

Commission
precedent holds that miner precaution is not a relevant consideration under the
Mathies test. Sec’y of Labor v. Consolidation Coal Co ., 895 F.3d
113, 118 (D.C. Cir. 2018); Newtown Energy, Inc ., 38 FMSHRC 2033, 2044
(Aug. 2016); Eagle Nest, Inc ., 14 FMSHRC 1119, 1123 (July 1992). Furthermore,
while
most of the miners had worked there consistently for a lengthy period, not all
of them did – and of course additional turnover can always occur. Tr. 261-62. There
is also evidence that contractors may have been working in the section. Tr.

262. Any miners new to the section, or any of these contractors, would necessarily
     have had less experience with the environment of the section to know how to
     react when escaping the mine in an emergency scenario—particularly when
     utilizing a lifeline leading directly to the obstruction of the protruding
     hoses.

Accordingly, we affirm
the Judge’s S&S determination .

III.

Conclusion

For the reasons
stated above, we affirm
the Judge’s finding that the operator violated the lifeline standard in 30 C.F.R. §
75.380(d)(7)(iv)
and the S&S determination.                                    

/s/ Mary Lu Jordan

Mary Lu Jordan, Chair

/s/ William I.
Althen

William I. Althen, Commissioner

/s/ Marco M. Rajkovich,
Jr.

Marco M. Rajkovich, Jr.,
Commissioner

/s/ Timothy J.
Baker

Timothy J. Baker, Commissioner

Distribution:

Winfield Wilson

Division of Mine Safety and Health

U.S. Department of Labor, Office of the Solicitor

201 12th Street South – Suite 401

Arlington, VA 22202-5450

[email protected]  

James P. McHugh

Hardy Pence PLLC

P.O. Box 2548

Charleston, WV 25329

[email protected]

Emily Toler Scott, Esq.

Counsel for Appellate Litigation

U.S. Department of Labor

Office of the Solicitor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]  

April Nelson, Esq.

Associate Solicitor

U.S. Department of Labor

Office of the Solicitor

Division of Mine Safety and Health

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Melanie Garris

Civil Penalty Compliance Division Chief

U.S. Department of Labor, Office of Assessments

Mine Safety and Health Administration

201 12th Street South, Suite 401

Arlington, VA 22202

[email protected]

Chief
Administrative Law Judge Glynn F. Voisin

Federal
Mine Safety & Health Review Commission

1331 Pennsylvania
Avenue, NW, Suite 520 N

Washington,
DC 20004-1710

[email protected]

Administrative
Law Judge John Lewis

Federal
Mine Safety & Health Review Commission

Office
of the Chief Administrative Law Judge

7 Parkway
Center

875
Greentree Road, Suite 290

Pittsburgh,
PA 15220

[email protected]

[1] Section 75.380(d)(7)(iv)
states that “[e]ach escapeway shall be . . . [p]rovided with a continuous,
durable directional lifeline or equivalent device that shall be . . . [l]ocated
in such a manner for miners to use effectively to escape.” 30 C.F.R. §
75.380(d)(7)(iv).

[2] The S&S
terminology is taken from section 104(d)(1) of the Act, 30 U.S.C. § 814(d)(1),
which distinguishes as more serious any violation that "could
significantly and substantially contribute to the cause and effect of a . . .
mine safety or health hazard." 30 U.S.C. § 814(d)(1).

[3] The pump car was
part of the longwall “mule train,” which is a series of track-mounted cars. Tr.
36-37. It provides the electrical, emulsion and rock dust needs of the
longwall, which are essential to its operations. Tr. 177, 246-47. See also CP
Ex. 8A-8D (photographs of the hydraulic hoses, taken by Consol after the
lifeline was removed).

[4] The citation
alleged that “[t]he continuous durable directional lifeline located at 47½
crosscut No. 2 track entry in the 5A operating longwall section MMU 001-0 is
not located in such a manner for miners to use effectively to escape.” Sec. Ex.
2.

[5] The Judge did not
define what was meant by the phrase “similar standard,” nor did the decision
identify which violations might meet that criteria. The certified Violations
History Report revealed that Consol was cited for one violation of 30 C.F.R. §
75.380(d)(7)(iv) (the same lifeline standard at issue here), as well as one
violation of 30 C.F.R. § 75.380(d)(1) (requiring maintenance of the escapeway
to avoid tripping hazards). Sec. Ex. 4.

[6] MSHA promulgated the emergency mine evacuation safety
standards at section 75.380 as a final rule in December 2006. Emergency Mine
Evacuation, 71 Fed. Reg. 71430 (2006). The rule was promulgated after Congress
amended the Mine Act, enacting the Mine Improvement and New Emergency Response
Act of 2006 (“MINER Act”), in response to three multiple-fatality mine
disasters. Pub. L. No. 109–236, 120 Stat. 493 (2006). The MINER Act, in part,
required operators to provide flame resistant and directional lifelines in
escapeways “to enable evacuation.” Pub. L. No. 109–236, 120 Stat. 493 (2006), codified
at 30 U.S.C. § 876(b)(2)(E)(iv).  

[7] In reaching his
conclusion of a violation, the Judge referenced two Commission cases, Black
Beauty Coal Co , 36 FMSHRC 1121 (May 2014) and American Coal Co. , 29
FMSHRC 941 (Dec. 2007). 43 FMSHRC at 132. Based on those cases, the Judge
determined that the Commission has interpreted “effectively” to mean “quickly
and safely” for purposes of section 75.380(d)(7). Id. While these prior
decisions reasonably suggest that safe and quick egress are appropriate
considerations in the context of lifeline and other emergency provisions,
Commission precedent has not narrowly defined “effective” to mean “quick and
safe.” Nor do we find it necessary or appropriate to adopt such a narrow
interpretation here.

[8]
“Substantial
evidence” only requires “such relevant evidence as a reasonable mind might
accept as adequate to support [the Judge’s] conclusion.” Rochester &
Pittsburgh Coal Co ., 11 FMSHRC 2159, 2163 (Nov. 1989) ( quoting Consol.
Edison Co. v. NLRB , 305 U.S. 197, 229 (1938). The Commission has
long held that a Judge’s credibility determination is entitled to great weight
and may not be overturned lightly. See Farmer v. Island Creek Coal Co .,
14 FMSHRC 1537, 1541 (Sept. 1992); Penn Allegh Coal Co ., 3 FMSHRC 2767,
2770 (Dec. 1981); Consol Pennsylvania Coal Co., LLC , 43 FMSHRC 145, 151
(Apr. 2021).

[9] While Consol argues that miners
would not lose contact with the lifeline due to its lowered height and
“accessibility,” it concedes that this standard covers a lifeline’s “location.”
Section
75.380(d)(7)(iv) is
not solely limited to “height” and “accessibility.”

[10] Nor are we
persuaded by Consol’s additional contentions that the Judge erred in affirming
the citation because a different subsection of section 75.380 also may prohibit
locating the lifeline near tripping hazards, and that the Judge’s finding of a
violation is unsupported because the escapeway was clear enough that it could
have passed a stretcher test. See PDR at 20-22 . Whether or not a
different subsection of the standard would have also been applicable, has no
bearing on whether the Secretary established a violation of section
75.380(d)(7)(iv) in this proceeding. Whether the escapeway met MSHA’s separate
stretcher clearance standard under 30 C.F.R. § 75.380(d) does not mean that it met
the lifeline standard.

[11] While (as
explained below) abatement and occurrence of a violation are distinct issues,
we note that it is contrary to the fundamentals of safety for any abatement,
regardless of who chose it or how it was implemented, to expose miners to a worse
condition due to increased obstructions creating potential hazards.  

[12] References were
made to Maple Creek Mining, Inc ., 27 FMSHRC 555, 562-63 (Aug. 2005)
(affirming a Judge’s finding that a trip and fall in a mucky escapeway would
lead to leg or back injuries); Buffalo Crushed Stone Inc ., 19 FMSHRC
231, 238 n.9 (Feb. 1997) (finding that slipping on a walkway would reasonably
result in head injuries or finger or wrist fractures);

S.
Ohio Coal Co .,
13 FMSHRC 912, 918 (Jun. 1991) (affirming a Judge’s conclusion that a
trip-and-fall accident would result in injuries such as “sprains, strains, or
fractures”).

[13] Of record
testimony, however, is Vargo’s disagreement with the assertion that the pump
car always ends up in a crosscut. Tr. 102-03.